Wednesday, September 20, 2006
The New York Times reviews Richard Posner's new book, Not a Suicide Pact. The reviewer, Michiko Kakutani, is not pleased with the book. Unfortunately, much of the review takes the following form: "Can you believe it? Posner believes X. How outrageous!" Well, I suppose if you assume your audience agrees with you, that can pass for a persuasive argument.
I have not read the book, but I have listened to a long podcast Posner gave to Glenn Reynolds and Helen Smith. Posner had many sensible to things to say. For example, he had quite interesting ideas about why the criminal law model does not make sense for terrorism. While others simply assert this conclusion, Posner, as usual, gives reasons.
One or two times Kakutani actually tries to make an argument, but one soon discovers why she avoids this method of persuasion. For example, Kakutani writes:
Many of Judge Posner’s arguments in this book are riddled with self-serving contradictions. While he declares that “the Bill of Rights should not be interpreted so broadly that any measure that does not strike the judiciary as a sound response to terrorism is deemed unconstitutional,” he also argues that “a constitutional right should be modified when changed circumstances indicate that the right no longer strikes a sensible balance between competing constitutional values, such as personal liberty and public safety.”
I think the only way you can find a contradiction here is to be an extremely uncharitable interpreter of Posner's words. And Kakatani is exactly that. But being stingy is not the same as being persuasive.
When I finally read the book, I probably won't agree with some of what Posner says, and that which I do agree with, I will probably support for different reasons than he does: he makes pragmatic arguments, while I would make originalist ones. But Posner deserves better than this.